Posted by: Patricia Salkin | March 2, 2020

PA Appeals Court Holds that Zoning Board Lacked Jurisdiction to Review Merits of Zoning Officer’s Preliminary Opinion Regarding Proposed Project

This post was authored by Matthew Loescher, Esq.

Keystone Sanitary Landfill, Inc. owned and operated a 714-acre sanitary landfill, which was divided between Dunmore Borough and neighboring Throop Borough. The Friends of Lackawanna and individual objectors, Joseph James and Mari May, Edward and Beverly Mizanty, and Katherine and Todd Spanish, appealed from an order of the Court of Common Pleas of Lackawanna County, which affirmed a decision of the Dunmore Borough Zoning Hearing Board. Specifically, Objectors argued that the height restrictions for buildings set forth in the Borough of Dunmore Zoning Ordinance applied to sanitary landfills and the Zoning Board erred in finding otherwise.

On appeal, Objectors argued that the Zoning Board abused its discretion and erred in holding that Keystone’s landfill was not a structure and that the landfill was not subject to the height restrictions in the Zoning Ordinance. Keystone contended that under the MPC, the only issue properly before the Zoning Board in Objectors’ appeal of the Zoning Officer’s preliminary opinion was the substantive validity of the Zoning Ordinance. Keystone further argued that Objectors’ appeal should be dismissed because the Zoning Board lacked jurisdiction to consider the merits of the Zoning Officer’s preliminary opinion.

The court found that Section 909.1(a)(3) did not confer jurisdiction on a zoning hearing board to consider the merits of a preliminary opinion issued under Section 916.2 of the MPC. Specifically, a preliminary opinion is not considered a “determination” for purposes of Section 909.1(a)(3).

As such, a holding that Section 909.1(a)(3) provides for an appeal from the zoning officer’s preliminary opinion issued pursuant to Section 916.2, would render the language of Section 909.1(a)(8) as surplusage. Additionally, Keystone had not submitted a development plan or zoning permit application to Dunmore Borough. The zoning officer’s preliminary opinion was limited in scope to the procedure described in Section 916.2 of the MPC, and had no bearing on any zoning permit application yet to be made by Keystone. Accordingly, the court vacated the order of the trial court and remanded the matter to the trial court to vacate the decision of the Zoning Board.

 Friends of Lackawanna v Dunmore Borough Zoning Hearing Board, 227 A. 3d 37 (PA Commwlth 2/18/2020)


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